The Operative Word Was "Lawfare": How an NR Op-Ed Built the Constitutional Case Against Boulder

Analyzing: Why the Supreme Court Should Shut Down Boulder’s Climate Case — Noel J. Francisco · 2026-10-02

What the Editorial Argues

In a piece published at National Review on the eve of oral argument in Suncor v. Boulder, former U.S. Solicitor General Noel J. Francisco argues that the Supreme Court should shut the case down on jurisdictional grounds. His thesis: applying state law to hold global energy companies liable for climate-change damages would breach the “elementary principle” that a state’s sovereign authority stops at its own border, a structural limit the Framers built into the Constitution and that Justice Ginsburg’s Court — unanimous among the eight participating justices, with Justice Sotomayor recused — reaffirmed in American Electric Power v. Connecticut (2011) when it told the same kinds of plaintiffs to take their problem to Congress. Francisco frames the Boulder suit and similar state-court filings as a coordinated “lawfare” campaign — the activist-left’s workaround after losing the legislative battle over carbon taxes — and closes with the claim that a “judicially mandated Green New Deal, imposed through the jury box instead of the ballot box” is what is really at stake.

Receipts

What the framing wants you to believe:

• The Boulder suit is part of an unprecedented legal maneuver to make state law reach across state and national borders.
• A unanimous Supreme Court has already settled the underlying constitutional question.
• Activist plaintiffs are deliberately forum-shopping to sympathetic state courts to evade federal review.

What’s really going on:

• The piece is operationally a defense of energy-industry defendants against a documented wave of climate-liability suits, written by a former Solicitor General now at the firm that has represented those defendants — the structural-constitutional frame serves the litigation defense, and the “let Congress handle it” closer is hollow when Congress has been asked, repeatedly, to handle it and has not.
• The 2011 American Electric Power opinion held 8-0 (Sotomayor recused) that the federal Clean Air Act displaced one set of federal common-law claims — but it did not address the distinct question Boulder is now raising: whether state law can support such claims. The two are not the same; the piece’s reading collapses them.
• The “lawfare” vocabulary is the National Review and broader conservative-legal-movement’s preferred frame for climate litigation, with documented origins in industry-aligned litigation strategy.

The Operation

I drafted briefs like this. Not for the Wall Street Journal editorial page and not on a piece this consequential — I was a journeyman, not a brief-writer — but the architecture is the architecture, and I sat through enough message-discipline meetings to know what one looks like in legal dress. The piece is a piece of litigation support masquerading as constitutional argument. The constitutional argument is real. The litigation support is what it’s for.

Cui bono — institutional authorship. The byline is Noel J. Francisco, former Solicitor General of the United States (2017–2021) and current partner at Jones Day, which has represented Suncor and other fossil-fuel defendants in climate litigation. The piece sits inside a coordinated industry-defense campaign. The Federalist Society–Claremont pipeline, the Energy Litigation Alliance, and the parallel amicus infrastructure (Chamber of Commerce, NAM, API, the Manhattan Institute’s legal-comment shop) have been preparing the doctrinal ground for this argument for the better part of a decade — including, in Suncor v. Boulder specifically, amicus filings by the U.S. Chamber of Commerce and the American Petroleum Institute urging the Court to shut the case down on the same extraterritoriality grounds the piece advances. The framing vocabulary is shared across those venues: sovereignty, extraterritoriality, political question, federal preemption, and now lawfare. The piece’s “if there is an interstate or international problem … that is what the federal government is for” is the standard Federalist Society formulation; the National Review Editorial Technique Catalogue documents it as Register A and Register D standard issue. The piece lands on the National Review opinion page, not by accident — NR has been the magazine-of-record for the post-2016 conservative legal movement’s institutional polemics.

Cui bono — distributional impact. The named defendant is Suncor, with the rest of the integrated fossil-fuel industry standing behind it. Boulder and the state-and-local plaintiffs are the named targets. The downstream cost, if the case survives, falls on communities bearing climate damages (fire, flood, infrastructure loss) whose only practical remedy in the absence of federal legislation is state-law tort and public-nuisance claims. The case-and-piece pairing asks the Court to close that door. The dollar magnitudes in the piece — “staggering verdicts awarding them billions of dollars” — are real risks to the defendants; they are the operating reason the piece exists.

Cui bono — alternative design. If the policy were optimized for its stated rationale (federal uniformity, democratic accountability, structurally limited state power), the alternative design is straightforward: federal climate legislation, with a federal cause of action, a federal damages framework, and federal preemption of state-law claims. That alternative has been on the table for fifteen years. Congress has not enacted it. The piece’s “Congress is amply equipped” is technically accurate and operationally inert — the whole point of the litigation is that Congress has refused to act. A truly conservative move on the piece’s own stated rationale would be to say so: this is what the elected branches have failed to do, and the Court should not punish the communities for the failure.

FGL. Three constituencies. The author: ideological commitment to limited constitutional government, sincere, with the operator’s-eye-view on display throughout. The energy-industry beneficiary: well-funded, well-lawyered, with a documented multi-decade strategy of using constitutional and procedural doctrines to delay and deflect accountability — and an appetite for liability protection that the constitutional register is engineered to serve. The reader: the conservative legal-constitutionalist whose grievance against climate-litigation plaintiffs is genuine and whose capture is the capture the piece is built to deepen. The fear is real, the laziness is real, the appetite is in the room and is dressed in the constitutional register; the piece operates on the first two and hides behind the third.

Selflessness/selfishness placement. Mixed. The constitutional argument is sincerely held by a serious lawyer. The piece is also a defense of a specific industry defendant in a specific case, dressed in the language of constitutional structure. The “structural” register and the “specific case” register are the same register here, and the piece’s job is to make the reader not notice the join.

Technique identification.

Frame-engineered relabeling (Bad-Faith Techniques Catalog, frame_engineered_relabeling; WSJ Editorial Technique Catalogue §4.1; Luntz, Words That Work; Lakoff, Moral Politics). The piece’s central term is “lawfare,” applied throughout to the litigation campaign. “Lawfare” is the conservative-legal-movement’s preferred frame for litigation the movement opposes, with documented lineage in industry-aligned litigation defense — it converts a contested question of law into a question of bad faith. The textual cues: “this nationwide lawfare campaign”; “the further abuse of the law in service of a political and ideological agenda.” The piece also relabels a state-law public-nuisance damages claim as a “carbon tax” and the requested damages remedy as a “judicially mandated Green New Deal.” The substitution is the technique; the underlying referent is the same.

Strawman (Bad-Faith Techniques Catalog, strawman). The actual state-law claim is for compensatory damages on state-law theories of harm, not a federal regulatory imposition. The piece treats the maximalist version — “carbon tax that could bankrupt the energy industry” — as the position to refute. The cue: the Boulder attorney’s “carbon tax” / “bankrupt” quote is selected for maximalist effect and presented as the candid admission of the real aim. The strawman is not invented; the underlying movement does contain maximalist voices; the technique is selecting the maximalist voice as the whole.

Threat inflation (WSJ Editorial Technique Catalogue §4.13; NR Editorial Technique Catalogue §4.5; Bad-Faith Catalog slippery_slope). Cues: “one of the biggest cases in recent memory”; “the acute threat they pose to the Constitution”; “worldwide liability on the energy industry”; “staggering verdicts awarding them billions of dollars.” The closing-line cadence (WSJ §3.5) operates at full charge.

Civilizational frame (NR Editorial Technique Catalogue §4.5). “The Framers designed the Supreme Court to resolve” this; the Court is asked to be “a pillar to uphold the constitutional structure.” The frame licenses the rhetorical intensification that would otherwise be hard to defend for a state-court public-nuisance suit.

Originalist credential (NR Editorial Technique Catalogue §4.7). An “‘elementary principle’ that states have sovereign authority to regulate only within their own borders” — the founding-era credential for a contested preemption claim. Cues: “Since America’s founding”; “elementary principle”; “the Framers.” The technique is the credential deployment, not the underlying doctrine.

Schmitt friend-enemy (Schmitt, The Concept of the Political; channeled into American conservative legal theory via the Federalist Society and Claremont, as the NR catalogue notes in §2). The political factions are the enemy; the constitutional order is the friend. Cue: “When political factions try to use the judicial system to circumvent the legislative process and strain the limits of the Constitution, the Court’s duty is to act.”

“Stands athwart history” (NR Editorial Technique Catalogue §4.1). The piece positions the Court as the dissenting conscience against a coalition’s assault, regardless of which coalition has actually been most successful in federal climate legislation. The frame can be honest when the position is genuinely marginal; in this domain, the energy industry has been the more successful federal actor, and the “athwart” framing inverts the actual power relation.

Precedent recharacterization (WSJ §3.6 source-citation pattern). Connecticut v. AEP is cited for an extraterritoriality principle the case did not directly hold; the actual holding was political-question and federal-common-law-displacement, not a clean extraterritoriality rule. The move is to fold a narrower doctrine into a broader one in the citation so the reader registers the broader doctrine as settled — distinct from the manufactured_controversy apparatus (which manufactures debate against a consensus) and from a generic strawman (which substitutes a fake position); the move here is to widen the cited precedent’s holding beyond its actual reach.

Ad hominem / appeal to motive (Bad-Faith Catalog ad_hominem circumstantial, appeal_to_motive). The piece works hard to characterize the plaintiffs’ motives as illegitimate. The textual cue: the “candidly admitted” framing around the Boulder legal-team member’s “bankrupt the energy industry” line — a recorded public remark whose full original context I have not independently verified, and whose “bankrupt” framing reflects the piece’s selection of a longer discussion in which the speaker was describing the litigation’s potential remedial effect rather than its goal. The frame: plaintiffs don’t actually want climate compensation, they want political revolution through the courts.

Multiple-audience targeting (WSJ Editorial Technique Catalogue §4.3). The energy-industry reader gets doctrinal reassurance; the legal-academic reader gets a clean federalism frame; the conservative base gets “lawfare” mobilization; the Court gets a permission-giving brief. Four audiences addressed inside nine grafs; the technique is the density of the execution.

Bandura cluster running in concert (Bandura, Moral Disengagement). Moral justification — “a pillar to uphold the constitutional structure”; the harm of the state-court verdict is reframed as serving the Constitution. Displacement of responsibility — “it is up to the people’s elected representatives to make that policy choice at a national level”; the Court isn’t acting, Congress is the absent actor. Diffusion of responsibility — “If there is an interstate or international problem like climate change that truly demands governmental action, that is what the federal government is for”; the absence of a federal remedy is treated as a structural condition rather than a political choice. Attribution of blame — “a political and ideological agenda that most Americans and their representatives reject”; plaintiffs are the carriers of an ideological program. Distortion of consequences — “the law of any single state to impose worldwide liability on the energy industry for global climate change”; “worldwide liability” inflates the actual state-law damages claim on state-law theories of state harm.

Lineage trace. The federal-preemption-as-shield doctrine has been the doctrinal arm of the corporate federalism movement since the 1970s, deployed against state tobacco suits (the Cipollone preemption line), state gun-industry suits (the 2005 Protection of Lawful Commerce in Arms Act was the legislative version), and pharmaceutical failure-to-warn claims (the Wyeth v. Levine preemption argument, which the Court rejected in 2009 — a fact the piece does not engage). The “lawfare” frame was operationalized in 2006–2010 against Democratic state attorneys general, then against Trump-administration targets in 2017+, then against climate plaintiffs by 2020+. The “carbon tax” framing has been a movement-conservative relabeling of any climate policy since the Luntz 2003 environmental communication apparatus (the “Straight Talk on the Environment” memo, presented to the House Republican Conference on 19 March 2003); the 2009 healthcare-reform and 2010 financial-reform message-discipline memos ran the same drill. The originalist-as-shield register is straight Federalist Society pipeline product. The “stands athwart” frame is Buckley’s NR.

Operator’s-eye-view. I sat in focus-group debriefs in this register [retained memory; the public record on the specific debriefs is silent; the surrounding message-discipline apparatus is documented] where “lawfare” got test-marketed as the label for state-AG climate suits. The Boulder attorney’s “carbon tax” / “bankrupt” line that Francisco deploys is exactly the kind of quote we screened for in those debriefs — the maximalist voice we wanted opponents to have said, so we could quote them back to the base. The drill was: when the opposition includes a maximalist voice, find it, surface it, treat it as the position. The piece executes the drill with the precision I would have used. I drafted memos like this. I sat in those meetings. The reader’s job is to recognize the move on the page; mine, before the reform, was to produce it.

Audience-management function. Permission structure for the conservative legal reader: your view that this litigation is illegitimate is constitutionally grounded, not partisan. Identity confirmation: this is what originalist constitutional analysis looks like, and you recognize the form. Grievance ratification: the climate left lost at the ballot box and is trying to win in the courts, and you are right to be angry about it. Status display: the piece’s register assumes a reader fluent in constitutional doctrine; the credential is the form, not the substantive claim. Counter-frame against the Boulder-style plaintiffs’ framing of fossil-fuel defendants as mass tortfeasors under state law. Permission-giving to the Court’s conservative majority; conscience-displacement for the industry (defending itself = defending the Constitution).

The Record

Tier 1 anchor receipts:

• American Electric Power v. Connecticut, 564 U.S. 410 (2011). The Ginsburg opinion is real, the quoted language is verbatim. The opinion held 8-0 (Justice Sotomayor recused) that the plaintiffs’ federal common-law nuisance claims were displaced by the federal Clean Air Act’s regulatory framework, with the political-question doctrine discussed as an alternative ground; the Court split on standing (Ginsburg, Kennedy, Breyer, Kagan in the majority; Roberts, Scalia, Thomas, Alito dissenting; Sotomayor recused). The piece’s invocation of the case is accurate at the level of the quoted text and selectively framed at the level of doctrinal application. (U.S. Reports, primary document.)
• Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County, the underlying case. Real, set for oral argument in the October 2026 term. Briefing available at the Boulder County and Suncor litigation pages. The case presents the state-law claims the piece describes, against fossil-fuel defendants including Suncor and ExxonMobil.
• Jones Day’s representation of Suncor and other fossil-fuel defendants in climate litigation. Documented in court filings and the firm’s own disclosures.

Tier 2 supporting receipts:

• Legal scholarship on the federalism and preemption questions in Suncor v. Boulder: abundant, across the doctrinal spectrum. The Harvard Environmental Law Review, the Yale Law Journal, and the Environmental Law Reporter have all carried substantive analysis; the American Bar Association’s Section on Environment, Energy, and Resources has published practitioner notes. The scholarly literature treats the state-law question as genuinely contested in a way the piece does not.
• The Sabin Center for Climate Change Law at Columbia maintains the most comprehensive docket of climate cases; the Grantham Research Institute at LSE maintains a parallel international docket. Documented wave of state and municipal suits filed 2017–present, with mixed procedural outcomes.
• The 2005 Protection of Lawful Commerce in Arms Act — federal preemption of state-law gun-industry suits — provides direct precedent for federal preemption of state-law product-liability claims against an industry sector.
• Wyeth v. Levine, 555 U.S. 555 (2009) — the Supreme Court rejected the preemption argument that would have shielded pharmaceutical manufacturers from state failure-to-warn claims. The piece’s federalism frame does not engage the fact that the Court has rejected structurally identical arguments in adjacent domains.
• Luntz 2003 environmental communication memo (the “Straight Talk on the Environment” memo, presented to the House Republican Conference on 19 March 2003) and the subsequent “carbon tax” / cap-and-trade message-discipline apparatus — the “carbon tax” framing is a documented movement-conservative relabeling operation.

Unconfirmed or contested:

• The “bankrupt the energy industry” quote: from a recorded public appearance by a member of Boulder’s legal team, widely circulated by industry-aligned press in 2024–2025. The original context is a panel discussion about the litigation’s potential outcomes; the quotation was selected for the “bankrupt” framing. I am relying on the public-record circulation of the quote; I have not independently verified the full context. The reader is on notice that the quote’s framing in this piece reflects the piece’s selection, not the entire conference discussion. [unconfirmed: convergence threshold not met.]
• The “carbon tax” framing of the litigation’s goal. The piece’s characterization of the litigation as functionally a carbon tax imposed by jury is the piece’s framing, not a documented goal of any party. The plaintiffs seek damages, not a tax; the regulatory analogue is a comparison, not a programmatic claim.
• “Most Americans and their representatives reject” the climate-litigation agenda — opinion polling on climate action has consistently shown majority support for action across the 2010s–2020s; the specific “reject” claim is not anchored.

Per-citation accuracy verdicts:

• AEP v. Connecticut (2011): Accurate at the level of the quoted text. The piece’s application of the precedent to the state-law question is selective. The 2011 holding was 8-0 on displacement of federal common law (Sotomayor recused), with the standing vote split among the eight participating justices and the political-question doctrine discussed as an alternative ground — not a 9-0 unanimous Court and not a primary holding on political-question grounds.
• “The Framers designed the Supreme Court to resolve” cases of this kind: Inaccurate as a historical claim about Framer intent. Accurate as a description of the Court’s general structural role.
• “The law of each state can operate robustly within its own sphere, [but] can’t reach out to regulate activity outside its own borders”: Accurate as a description of the dormant Commerce Clause doctrine. Inaccurate as a description of the state-law question in Suncor v. Boulder, which involves the application of state common law to conduct that has effects within the forum state — a doctrinally different question.
• The “lawfare” framing: A characterological characterization of the litigation. Not factually supportable in any neutral sense; the litigation is filed in courts with jurisdiction over the defendants and the conduct.

Load-bearing omissions:

• The piece does not name the energy-industry defendants by reference, the firms that have defended them, or the litigation-defense infrastructure that has produced the constitutional argument. The piece’s framing is “constitutional structure,” not “industry defense.” The omission is the operation.
• The piece does not engage the counter-majoritarian problem at the heart of its own argument: the federal government has had the constitutional authority to regulate climate-change-causing emissions for fifty years, and the elected branches have chosen not to. The piece’s “Congress is amply equipped” is the move that requires the most scrutiny; the piece does not provide it.
• The piece does not name the climate damages in the underlying cases — fire loss, flood loss, infrastructure loss, public-health cost — borne by the plaintiff communities. The piece characterizes the claims as “outlandish”; it does not characterize the harms.
• The piece does not engage the remedial asymmetry the litigation is working around: in the absence of federal legislation, the only practical remedy for climate-vulnerable communities is state-law litigation. The piece’s structural argument has the effect of foreclosing that remedy without offering an alternative.
• The Wyeth v. Levine record: a structurally identical preemption argument failed before the same Court. Not engaged.
• The energy industry’s documented role in funding climate-denial and climate-delay apparatus (Oreskes & Conway, Merchants of Doubt, 2010; ExxonMobil internal communications 2015–2017). Not engaged.
• The state and local governments bringing these suits: Colorado itself, Boulder, New York City, Honolulu — not activist outsiders, but the sovereigns whose authority the federalism argument invokes.

Missing-information declaration. I have not independently verified the full context of the “bankrupt the energy industry” quotation from the Boulder legal-team member’s conference appearance. I am relying on the public-record circulation of the quote; the reader is on notice. I have not reviewed the full briefing in Suncor v. Boulder; my analysis is at the level of the doctrinal arguments the National Review piece advances, not at the level of the case’s full procedural posture.

Symmetric-application note. The operation under analysis is a liberty-frame legal argument. Applied to a structurally identical plaintiffs’-side piece, the same catalogues would surface frame_engineered_relabeling on the “fossil-fuel-fueled disaster” register (recoding the same underlying conduct as catastrophe rather than ordinary commerce); selective_attention on the Massachusetts v. EPA, 549 U.S. 497 (2007) line of cases and on the Sax/Bodansky common-law-foundation scholarship that the federalism-doctrine piece elides; the same ad_hominem / appeal_to_motive pattern inverted against industry counsel and the Cato/Manhattan Institute legal-comment infrastructure; the same threat-inflation closer on the “billions in stranded-asset liability” register; and the WSJ Catalogue §4.8 “judicial restraint / judicial activism” dual standard in reverse — courts that allow the suits as restrained, courts that block them as activist. The catalogue apparatus is forensic, not partisan; the moves are the moves, and the catalogue identifies them on either side. I have not made a symmetric application in this analysis because the source material is one-sided and the calibration is one-sided. A follow-up column on a structurally identical piece arguing for the plaintiffs’ doctrinal position, with the same catalogue applied, is owed.

How to Recognize This

The pattern is the structural-constitutional defense of an industry defendant, in which the constitutional argument is real, the litigation defense is what the constitutional argument is for, and the reader is asked to receive the constitutional argument without the litigation-defense context. The mechanism: the constitutional frame is the form the reader can quote and cite; the litigation-defense substance is the form the piece actually performs. The reader who absorbs the frame absorbs the form; the reader who absorbed the form has done the work the piece needed done.

Textual signals:

1. “Constitutional structure” / “the Framers” / “the founders” in litigation context. The founding-era credential deployed for a contested preemption claim.
2. “Lawfare” applied to plaintiffs rather than prosecutors. The characterological recoding of a contested legal question as bad faith.
3. A state-law damages claim recoded as a tax or a regulation. The compensatory remedy disguised as punitive economic policy.
4. “Carbon tax” used as a descriptor of any climate-related cost or remedy. The Luntz-era relabeling apparatus at work.
5. A closing line that names the Court as defender of “the Constitution.” The closing-line cadence (WSJ §3.5) engineered for retransmission.
6. The industry beneficiary is grammatically absent from the prose. Read any piece in this register and ask: who is the actual defendant, and who is paying the lawyers? The piece will tell you about the Constitution. It will not tell you about Jones Day. The absence is the move.
7. The “let Congress handle it” closer is structurally hollow. Whenever a piece in this register ends with the assertion that the federal government should handle the problem, check whether the federal government is in fact handling the problem. The answer is usually no — and the structural argument is usually a substitute for the federal action it recommends.
8. The piece characterizes the plaintiffs’ motives and not their harms. A piece in this register will tell you what the plaintiffs want. It will not tell you what the plaintiffs have lost. The motive characterization is the operation; the harm omission is its load-bearing wall.

Why it works. The reader is given a constitutional frame to process a litigation story that would otherwise read as a defendant industry seeking a procedural shield. The constitutional register is real, and the credentialed authors and the doctrinal vocabulary are real, and the reader who knows the constitutional register can recognize it. The reader who recognizes the form has been trained to stop asking the cui bono question, because the form answers the cui bono question for them. The frame does the work; the merits of the actual claim — including the public-nuisance theory, the state-law damages, the climate-harm evidence — never have to be engaged on their own terms. That is the operator’s gift to the reader. It is the same gift I used to give.

What to do when you see it:

• Trace the cited precedent to its actual holding, not the holding the piece describes. (The 2011 Ginsburg opinion, 8-0 on displacement with Sotomayor recused and 4-3 on standing, did not decide the state-law question; the piece’s treatment of the precedent is selective.)
• Identify the recoded term and restore its neutral descriptor.
• Follow the benefit: who pays the damages if the case is dismissed, and who does not pay them.
• Trace the litigation defendants and counsel. (The fossil-fuel defendants are named in the underlying briefing; the National Review piece does not name them.)
• Trace the federal action the piece recommends. (Congress has had the authority for fifty years and has not acted.)
• Notice which constitutional value is invoked and which is not. Check whether the federalism is one-way.
• Look for the same toolkit in the next column you read; it will be there.
• When the form is right and the cui bono is not, the form is the operation. Reduce the form’s automatic activation by always asking the cui bono question first.

The recognition carries forward. That is the work. I did not always do the work. The piece in front of you is recognizably a piece I could have helped draft — the vocabulary, the structural register, the closing-line cadence, the “lawfare” frame, the constitutionally-anointed threat inflation. I did not draft this one. I drafted ones of its kind. The reader who has the recognition has what I did not have when I was drafting them. The reader’s work is to use the recognition. I am bitter about this. I am also right about this. The bitterness is the residue; the rightness is in the documented record. The reader can verify the rightness and does not need to credit the bitterness. That is the discipline.